Police Stress Need for Searches By JEREMY SMERD - Tuesday, November 1st, 2005 New York Sun Defending the decision to conduct random searches of subway passengers, one of the Police Department's highest-ranking counterterrorism officials told a federal judge yesterday that "in a perfect world," police would inspect bags at all of the system's 468 stations. "More is better than some, some is better than none, and none helps" the terrorists, the deputy commissioner of intelligence, David Cohen, said. Mr. Cohen, who came to the Police Department in 2002 after spending more than 30 years at the Central Intelligence Agency, told Judge Richard Berman in U.S. District Court in Manhattan that the randomness of the program created enough uncertainty to disrupt the execution and planning of potential terror attacks. The case brought against the city by the New York Civil Liberties Union enters its second day today, when examination of witnesses is likely to conclude. The judge is expected to rule sometime in December. The NYCLU argued yesterday that the police program is enforced too sporadically to be effective and, as a result, did not justify the suspension of the Fourth Amendment of the Constitution, which protects against random searches. "It's difficult to believe sophisticated terrorists who are trying to attack the subway system are going to be deterred," the NYCLU's lead attorney, Christopher Dunn, said during his opening statement. "The only thing being searched are innocent New Yorkers." Mr. Dunn told Judge Berman yesterday that ruling the searches constitutional would mark "a momentous change in our society." The city's random bag search policy, the first of its kind in America, began July 22, a day after a second bombing attack on the London transit system. News of the second attack prompted Police Department lawyers to draft the policy, which they then immediately implemented, the deputy director of the Police Department's law office, Kerry Sweet, told the court yesterday. The five plaintiffs in the case against the city faced cross-examination yesterday. They were asked to explain why, for the most part, they do not object to the searches that have become commonplace at private and public places like Madison Square Garden, Shea Stadium, and the city's airports and courts. In fact, lawyers for the city pointed out that a sign posted at the office building at 124 Broad St., where the New York Civil Liberties Union has its headquarters, tells visitors of the building's right to search bags. One plaintiff, Joseph Gehring Jr., the son of a retired police captain, said that because the subway is a necessity of daily life for most New Yorkers, it is an extension of the public sidewalk and should not be considered in the same light as a self-enclosed space like a sports arena, courthouse, or airport. Mr. Gehring, who is a lawyer, said the Police Department's subway search methods make him question whether he could be searched anywhere in the city. "I don't know what my rights are, at least as far as the city sees my rights," Mr. Gehring said. He added that he "does not want the searches to justify other searches." The other plaintiffs, all of whom made similar arguments, include a survivor of the September 11, 2001, attacks, Brendan MacWade; a social worker, Andrew Schonebaum; an employee of the federal government, Norman Murphy, and a writer and political activist, Partha Banerjee. Lawyers for the city tried to discredit a survey conducted by the NYCLU between August 25 and September 16 that the group said shows that searches are not frequent enough to offer meaningful value as a deterrent and therefore warrant the suspension of the Fourth Amendment. The NYCLU said that during the 23-day period, 13 "observers" who were paid $10 an hour canvassed the system's 468 stations and recorded 34 instances when they witnessed police searches taking place. Judge Berman asked whether anyone considered using sampling techniques favored by academics in polling and surveys. A witness said Mr. Dunn had designed the methodology, an answer that did not appear to satisfy the judge. The police have divulged little detail about the search program and say they do not keep any statistics about the searches. The police did offer some insights about the program, saying the frequency of inspections are increased during rush hour, when an attack could inflict more damage. Also, the searches have yet to lead to an arrest, the deputy chief of the police transit bureau, Owen Monaghan, said. The civil liberties union chose not to cross-examine Mr. Cohen and another witness for the defense, the deputy commissioner of counterterrorism, Michael Sheehan. After Mr. Cohen was excused as a witness, opponents of the search policy loudly criticized the judge, who alone had questioned the witness, for not asking tougher questions. This is not interactive TV," Judge Berman said. The two protesters stood up to leave. "It's nonsense. It's sophistry," they shouted. While testimony in the case is likely to conclude today, final arguments will not be heard until December 2, after which the judge will rule on the case. _______________________________________________________________________ Trial Focuses on Legality of Bag Searches on Subway By SEWELL CHAN - Tuesday, November 1st, 2005 N.Y. Times The tension between public safety and personal privacy was the subject of vigorous debate yesterday, at the start of the trial of the New York Civil Liberties Union's lawsuit challenging police inspections of bags and packages at subway entrances. The civil liberties group argues that the searches violate the Fourth Amendment's guarantee against illegal searches and seizures, while the city asserts that they are an effective deterrent to a terrorist attack. The Police Department began the searches on July 21, after the London subway and bus system was attacked for the second time that month, and has vowed to continue the policy. The case is being watched closely. The city government's top lawyer, Corporation Counsel Michael A. Cardozo, whose office is defending the policy, sat in on the trial, in Federal District Court in Manhattan, as did the Police Department's general counsel, S. Andrew Schaffer. Judge Richard M. Berman, who will decide the case after closing arguments on Dec. 2, heard starkly divergent interpretations of the policy. Christopher Dunn, the civil liberties union's top lawyer in the case, said, "The only people being searched under this program are innocent New Yorkers." The searches have not uncovered any terrorist plot, or even contraband, he said. Gail Donoghue, the city's lead lawyer in the case, said the searches were part of a rational strategy calculated to "keep terrorist planning and operations off balance." By adding an element of unpredictability, she said, the policy "effectively hardens New York City targets and drives terrorist planning elsewhere." Three police officials testified, including David Cohen, the deputy police commissioner for intelligence, who worked at the Central Intelligence Agency from 1966 to 2000. He was the agency's deputy director for operations, overseeing clandestine work, from 1995 to 1997, and helped create a unit dedicated to finding Osama bin Laden. "Unpredictability is the enemy of the terrorist and the ally of those who are trying to prevent or deter another terrorist attack," he said. Mr. Cohen, who joined the Police Department in 2002, conceded that at any time searches were conducted at only a few stations. "It's not a perfect world, so we have to play the odds, so to speak," he said. Another police official, Inspector Kerry R. Sweet, who is also a lawyer, testified that Police Commissioner Raymond W. Kelly authorized the search policy after two internal meetings on July 21. Inspector Sweet said he and two other department lawyers, Mr. Schaffer and Lt. Daniel J. Albano, were asked to devise a policy "within constitutional boundaries." The five plaintiffs in the lawsuit all testified about their objections. The lead plaintiff, Brendan A. MacWade, who was inside the World Trade Center during the Sept. 11 attack, submitted to a bag search at the Chambers Street station, on the A, C and E lines in Lower Manhattan, on July 22. Under cross-examination by Peter G. Farrell, a lawyer for the city, Mr. MacWade acknowledged that his bags had been searched at sporting arenas, airports and courthouses, but he rejected the comparison. "I view the freedom of movement of the subways as similar to that of the streets," he said. Another plaintiff, Joseph E. Gehring Jr., a lawyer, said the search policy could cause him to violate his ethical obligations to keep client information confidential. A third plaintiff, Partha Banerjee, said he had felt humiliated when his bag was searched at a political rally several years ago. While riders selected for a search have the option of refusing and exiting the subways, two plaintiffs - Norman W. Murphy, a federal worker, and Andrew D. Schonebaum, a social worker - said they viewed that choice as illusory because they have to take the subway to and from work. A third police official, Deputy Chief Owen J. Monaghan of the Transit Bureau, said he did not know how many searches had been conducted. He confirmed that the officers use a numerical formula - every 5th, 12th or 20th person with a bag or package, for example. Mr. Dunn's central argument is that the searches are not pervasive and therefore not effective enough to warrant the intrusion. The civil liberties union hired testers who visited subway stations 3,288 times from Aug. 25 to Sept. 16, and encountered searches in only 34 instances. The city's lawyers disputed the relevance and validity of the sample. The most dramatic moment of the day came at the end of Mr. Cohen's testimony, when two men in the audience loudly began to demand why he had not been cross-examined. _______________________________________________________________________ Bag search a must - Cop BY THOMAS ZAMBITO - Tuesday, November 1st, 2005 N.Y. Daily News Random bag searches in the subways are a vital part of the city's defense against terror groups bent on mass murder, a ranking city cop testified yesterday. Against a challenge by the New York Civil Liberties Union, NYPD Deputy Commissioner David Cohen defended the city's decision to search the bags of subway riders following the deadly attacks on the London subway system in July. The NYCLU brought the case on behalf of riders who say the subways are no different than the sidewalks above, a public thoroughfare where passengers should ride unimpeded by government interference. But Cohen told Manhattan federal Judge Richard Berman that the department's anti-terror strategists, using data gleaned from across the globe, concluded that subway searches would deter a terror strike in the world's largest subway system. While searches at every station would "paralyze the system," he said random checks are an effective deterrent. "Unpredictability is the enemy of the terrorist and the ally of those trying to prevent an attack," said Cohen, who served 35 years with the Central Intelligence Agency before joining the NYPD following the Sept. 11 attacks. NYCLU Legal Director Christopher Dunn said the sporadic searches are an ineffective terror tool and only serve to interfere with public access to the system. He has asked Berman to declare the searches unconstitutional. The Bush administration's former National Security Council counterterrorism chief Richard Clarke has submitted a deposition on the city's behalf. Subway rider Joseph Gehring, an attorney, said that he took a cab in July rather than comply with an officer's request to search his bag at a W. 72nd St. station near his home. Gehring said he was concerned that police could get a peek at his client's personal documents. "If I consent to a search of a bag that contained such documents, I would be effectively allowing someone to view confidential documents," Gehring said in an affidavit. Testimony in the case continues today. Berman is expected to issue a ruling after both sides sum up their cases Dec. 2. _______________________________________________________________________ NYPD official: NYC security measures have already helped stop terrorists By LARRY NEUMEISTER (The Associated Press) - Monday, October 31, 2005, 4:25 PM EST NEW YORK -- The random search of subway riders is a key part of the city's strategy of trying to keep terrorists guessing about what they'll face from law enforcement, a strategy that has already prevented attacks, according to the testimony Monday of a former CIA counterterrorism official who now works for city police. New York Police Department Deputy Commissioner David Cohen, testifying at a two-day trial to determine the constitutionality of the subway searches, told U.S. District Judge Richard M. Berman that the searches were an important obstacle for terrorists. New York Civil Liberties Union Legal Director Christopher Dunn called on Berman to declare the searches unconstitutional, saying they were imposed only on innocent New Yorkers at a place that was "an extension of our city's public sidewalks." He said it was "difficult to understand how anybody could believe sophisticated terrorists looking to attack the subway system are going to be deterred by this program." Cohen cited the 2003 arrest of Iyman Faris, an Ohio truck driver sentenced to 20 years in prison after he plotted to cut through cables supporting the Brooklyn Bridge but abandoned the plan after e-mailing contacts that it was "unlikely to succeed." Cohen said the Pakistani-born Faris revealed to investigators after his arrest that he conducted surveillance of the bridge and recommended to his terrorist boss, Khalid Shaikh Mohammed, to abandon the project because "the weather was too hot." Cohen said in a written declaration accompanying his oral testimony Monday that the weather reference meant security made the project too dangerous. Security on the bridge then consisted of police deployments on a regular but unpredictable basis, he added. The FBI has told the city police department that terrorist operatives who have been detained and interviewed tell investigators that New York City remains a hard target of terrorists, Cohen said. Cohen said the random searches make it hard for terrorists to predict success if they target the subways. "Unpredictability is the enemy of terrorists and the ally of those trying to prevent an attack," said Cohen, who during a 35-year career at the CIA created the al-Qaida Osama bin Laden station in the mid-1990s to investigate the terrorism boss. Cohen said he recommended the subway search program to toss another roadblock in the way of terrorists who might want to target the city's 468 subway stations serving 26 train lines, the largest in the nation. To support its argument that the subway searches were a useless intrusion on privacy, the NYCLU said in court papers that its own survey of 5,500 subway turnstile entrances from Aug. 25 to Sept. 16 found a total of 34 searches. The NYCLU brought the lawsuit on behalf of several subway riders who were searched after the city put random searches in place in July after deadly terrorist bombings in London's subway system. Berman was scheduled to hear further evidence in the case Tuesday before lawyers present oral arguments on Dec. 2. Berman promised to issue a ruling "as soon thereafter as I reasonably can." _______________________________________________________________________ Cops: bag searches keep terrorists off guard BY JOSHUA ROBIN - Tuesday, November 1st, 2005 N.Y. Newsday Top police officials testified Monday that no explosives have been found in bags examined in random police subway searches begun in July, but they maintained the program is still needed to keep terrorists off-guard. Speaking at the first of a two-day federal trial examining the measure's constitutionality, Deputy Commissioner Owen J. Monaghan, executive officer of the NYPD's transit bureau, acknowledged that police have not yet willingly stopped a bomber intent on attacking a subway since the searches began in mid-July. "I don't have personal knowledge of it," he told Judge Richard M. Berman of U.S. District Court in Manhattan, under questioning from an attorney for a group that is seeking to stop the searches. Still, other police officials, including the NYPD's top counterterrorism officer, said the random searches might throw off bombers, who they said are known to meticulously canvass sites before attacking. "The program itself inserts a degree of unpredictability," said David Cohen, the police department's deputy commissioner of intelligence, who joined the police department in 2002 after more than 30 years in the CIA, where he created a unit devoted to al-Qaeda leader Osama bin Laden. "Unpredictability is their enemy," Cohen said. The trial stems from a suit brought in August by New York Civil Liberties Union on behalf of five New Yorkers who charge the searches violate prohibitions against unlawful searches and seizures -- and do almost nothing to protect the city. Courts have allowed searches without warrants -- but only in exceptional cases and only if the searches are effective, said Donna Lieberman, the group's executive director. Lawyers for the organization admit the serious threats the city is under, but they call the searches too ineffective to justify what it says is a violation of the Fourth Amendment. To that end, NYCLU attorneys presented a study that showed its workers encountered only 34 ongoing police searches in more than 5,000 visits. But the group might have suffered a setback when a staffer testified that a study on the frequency of searches was not done with statistical methodology. The trial was halted briefly when two hecklers emerged from the gallery, calling the searches treasonous. They were escorted out. Testimony resumes again Tuesday. _______________________________________________________________________ Subway Bag Searches Challenged In Court Unknown Author - Monday, October 31st, 2005 NY 1 News A trial questioning the practice of random bag searches in the city's transit system begin in Manhattan Federal Court Monday in a suit brought by the New York Civil Liberties Union that challenges the searches on behalf of five plaintiffs. Random bag searches were put in place on city subways and buses back in July after a series of deadly subway bombings in London. The NYCLU says the bag checks won't prevent a terrorist attack, and contends the searches violate the New York State constitution because they could lead to racial profiling. "All of us want to be safe as we make our way around the city going to work, going to school, taking our kids places, but New Yorkers should not be subject to the invasion of privacy that a bag search is when they are not suspected of any wrongdoing," said NYCLU Executive Director Donna Lieberman. "We don't think there's any meaningful effectiveness to this," said the NYCLU's Christopher Dunn. "Anyone who rides the trains in New York knows there are virtually no checkpoints. It cannot be that the Police Department thinks this program is going to keep terrorists out of the subway system." One of the plaintiffs, a man who survived the 9/11 terror attacks on the World Trade Center, says the searches don't make him feel any safer. "I couldn't believe we've gotten to a point now that we as Americans are being told that we have to that in order to get to work, get to anyplace we want to go in New York City, the only way we can do that now is to agree to give up our constitutional rights," said plaintiff Brendan MacWade. "I feel safer when I see the police doing intelligence work, undercover work, things that I don't see," said another of the plaintiffs. "A very public opening of bags in front of a turnstile only allows law abiding people to open their bags, and it deters any trouble makers out of the system, or to another entrance, which is our argument. If a terrorist wants to attack the subways, he doesn't have to go through the search point. He can simply turn back and pick another entrance." The city says the searches are a valuable tool in preventing terrorism. "Our position is that the counter-terrorism people know that this kind of program creates an uncertainty for terrorists, and they shy away from targets where there's this kind of security," said Gail Donoghue, an attorney for the city. "We wanted to be careful and we wanted to do it right, and that's why the lawyers spent some time with it." "The city believes that it's acting legally and that we will prevail in court," said Mayor Michael Bloomberg. "We believe that these bag searches are a necessary part of our constant struggle to keep this city safe." Riders give the bag checks mixed reviews. "You're invading people's privacy. We're supposed to be able to have a right to our privacy, so once you're going through our bags the person that you're really looking for is just getting away," said a straphanger. "It has to become acceptable because you see what happened in London. So many people get on the subway - it's almost a very scary thought, actually," said another. "It may be unconstitutional, but the other thing is you don't want people bringing bombs onto the subway," added a third. Wednesday is expected to be the last day of witness testimony. The lawyers will be back in court December 2nd, when they will make their closing arguments. The judge will make up his mind sometime after that. _______________________________________________________________________ 'SEARCH' PARTIES UNDER FIRE (Deputy Commish David Cohen in Defense) By KATI CORNELL SMITH and STEPHANIE GASKELL - Tuesday, November 1st, 2005 N.Y. Post A high-ranking NYPD official defended the city's random search of bags at subway turnstiles yesterday - and said every passenger's belongings would be checked "in a perfect world." "More is better than some, and some is better than none," said Deputy Commissioner David Cohen - the first witness to testify at a bench trial centered on the constitutionality of the searches. Cohen said he helped develop the program based on over 30 years experience analyzing terror threats for the CIA before he joined the NYPD in 2002. Acknowledging that "in a perfect world" every bag would be checked, the top cop said even the random searches go a long way toward deterring terrorist attacks. "Unpredictability is the enemy of the terrorist," Cohen told Manhattan Federal Judge Richard Berman, who is set to decide the case. "The program itself inserts a degree of unpredictability." The New York Civil Liberties Union has sued the city on behalf of five straphangers, arguing the program is ineffective and an invasion of privacy. The subway riders testified that they felt violated by the searches. Mayor Bloomberg also weighed in yesterday, although he was not present in court. "The city believes that it's acting legally and that we will prevail in court. We believe that these bag searches are a necessary part of our constant struggle to keep this city safe," said Bloomberg. _______________________________________________________________________ Sometimes Big Brother Is a Protector (Commentary In Support of Radom Subway Search Policy) By CLYDE HABERMAN - Tuesday, November 1st, 2005 N.Y. Times WELL, government officials can't say they have not been warned. A Manhattan jury has put them on notice what to expect should terrorists strike on their watch. They could be held responsible. Worse, they could end up bearing even more of the blame than the suicide bombers and other homicidal fanatics. That is the inescapable conclusion to be drawn from a verdict in State Supreme Court last week. The six jurors held the Port Authority of New York and New Jersey negligent in the 1993 terrorist raid that killed six people at the World Trade Center. The authority had been warned that its underground garage was vulnerable, the jurors concluded, yet it failed to take measures to prevent a lethal attack. Not only that, it was more than twice as responsible for the bombing as the terrorists. Through some mathematical wizardry, the jurors held the authority to be 68 percent at fault, the murderers only 32 percent. Poor terrorists! Guess they couldn't help themselves. They must have felt they had no choice but to take advantage of a security lapse. In this atmosphere, the New York Police Department has been warned, too. It has every reason to believe that subway trains and stations are vulnerable, even if the terror threat announced last month by the mayor and the police commissioner turned out to be a dud. Danger presumably lurks all the same. The London Underground bombings in July qualify as a warning. So do the Madrid explosions last year. Ask yourself this: Now more than ever, given the verdict against the Port Authority, do you think New Yorkers would let the Police Department off the hook should subway cars explode and it was found to have done little to try to prevent an attack? Not very likely. Lawyers would be tripping over one another down at the courthouse to file their motions and lawsuits. This brings us to the random bag searches that the police have been conducting in the subways since late July. That policy went on trial yesterday in a federal courtroom in Manhattan. It is the contention of the New York Civil Liberties Union, on the behalf of five subway riders, that the police program is unconstitutional, violating the Fourth Amendment's proscription against "unreasonable searches and seizures." Subways, the group says, are different from airports, courthouses and sports arenas, places where people have come to expect, and even accept, security searches. Subways, the civil libertarians say, are extensions of the city sidewalks. Besides, they assert, these searches are useless. There are so few police checkpoints and so many subway entrances that "it is simply difficult to understand how sophisticated terrorists" are going to be deterred, said Christopher Dunn, the associate legal director of the civil liberties union. "The only people being searched under this program are innocent New Yorkers," he told the judge, Richard M. Berman. It is the nature, perhaps the duty, of groups like Mr. Dunn's to challenge government actions. Unless someone like a judge draws the line when constitutional issues are at stake, how will anyone know when the authorities have crossed it? BUT in this case, the civil libertarians seem to have assigned themselves a level of security expertise that is undetectable by anyone else. The searches do no good? How, the city asked yesterday in counterthrust, could they possibly know that? The randomness of the searches is their virtue, said David Cohen, the deputy police commissioner for intelligence. "Unpredictability is the enemy of the terrorists," Mr. Cohen testified. They are not as sophisticated as some may think, he suggested. Bag inspections increase the risks for them, he said, and along with that the chances that "they could just mess up." Judge Berman is not expected to rule for a month or more. It is, of course, risky, indeed foolish, to predict what a judge will do. But presumably he is well aware of the jury's stern warning about security lapses in the Port Authority case. He may even be aware of opinion polls that have shown solid public support for the searches. Not that a judge is guided by polls. Still, it may be worth noting that New Yorkers in those surveys said that a glancing blow dealt to their freedom of movement beat the heck out of being blown apart. _______________________________________________________________________ Tuesday, November 1, 2005 New York Sun Editorial Civil Liberties Frauds (Editorial in Support of NYPD Radom Search Policy) Hypocrisy is on show in a Manhattan courtroom today. The New York Civil Liberties Union will argue for the second day before Judge Richard Berman that the city's subway bag search policy is an "unjustifiable erosion of the privacy rights of the American public." Yet take a walk into the NYCLU's Manhattan headquarters - which it shares with other organizations - and you'll find a sign warning visitors that all bags are subject to search. One of the city's lawyers, Jay Kranis, pointed this out yesterday in court while cross-examining a witness. Either the NYCLU believes its headquarters are at greater risk of a terrorist threat than the city's subway system, or it believes ordinary New Yorkers don't deserve the same safety precautions that they do. As we wrote back in July - when the police first announced random searches - the supposed civil liberties champions would do well to spend less time shouting through megaphones and more time reading the Fourth Amendment of which they've proclaimed themselves the defenders. The only searches it forbids are "unreasonable searches." The July attacks on London's transit system put New York's on higher alert, and Commissioner Kelly - about whom we wrote that we doubt he "has ever done anything unreasonable in his entire career" - decided the searches were necessary. _______________________________________________________________________ Subways getting emergency exits BY RIVKA BUKOWSKY and PETE DONOHUE - Tuesday, November 1st, 2005 N.Y. Daily News (Edited for brevity and police pertinency) Every subway station will be equipped with new emergency exit gates so transit riders can quickly escape from a fire or a terrorist attack, the Daily News has learned. "Panic bars," similar to those on emergency-exit doors in movie theaters, will be installed on subway station gates, located near turnstiles and stairwells to streets - allowing riders to get out without having to ask a token booth clerk to unlock the portals, authorities said. The News discovered a prototype in the process of being tested by the Transit Authority at the Lawrence St. station in downtown Brooklyn for more than a month. When pushed, the bar unlocks the gate in an unstaffed section of the station and sounds a loud alarm. Nearly 1,370 swinging gates will be outfitted with panic bars by December 2006, TA President Lawrence Reuter told The News when asked about the Lawrence St. station. "The idea is to [quickly] get you out of a station in any kind of emergency situation, be it a fire or smoke condition ... any reason we need to evacuate the system," Reuter said. Reuter said he doesn't believe the current setup at subway exits and entrances is unsafe, describing the new equipment as an "enhancement." But riders, elected officials and even Police and Fire department brass have expressed varying degrees of concern about the TA's moves towards automation, including the removal of token booth clerks and the rise in the number of ceiling-to-floor barred turnstiles. The News in July reported that the number of ceiling-to-floor turnstiles, called HEETS, have increased from 10 to 529 in the past eight years. [Non-text portions of this message have been removed] ------------------------ Yahoo! Groups Sponsor --------------------~--> Fair play? Video games influencing politics. 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